Deterrence in the Copyright (Infringing File Sharing) Amendment Act 2011

Abstract

In 2011 Parliament enacted legislation designed to strengthen copyright enforcement and combat illegal file sharing. One of the most notable aspects of the legislation is the requirement that sanctions imposed under the Act must act as a deterrent to further infringing. This essay argues that the introduction of a deterrence standard in the legislation was ill-considered and inappropriate. Deterrent measures are more traditionally found in criminal law, where the application of punitive sanctions is doctrinally consistent. This is reflected in the general absence of the language of deterrence from the civil provisions of international law copyright regimes. Furthermore, evidence suggests that attempts to deter illegal file sharing behaviour through civil remedies have been unsuccessful to this point. An evaluation of the Act’s preparatory material leads to the conclusion that Parliament introduced a deterrence requirement as a reassurance for rights owners rather than because of its utility as a legal principle. If this was Parliament’s intention then to some extent it has backfired. Public reaction demonstrates a hardening of opinion against strengthening enforcement measures rather than a deterrent effect.